Banned magazine takes First Amendment fight against Florida prison system to US Supreme Court

Arguing that corrections officials should not receive “blind deference,” attorneys for a monthly magazine blocked from distribution to Florida prison inmates have taken a long-running First Amendment fight to the U.S. Supreme Court.

Prison Legal News filed a petition last week asking the Supreme Court to take up a challenge to Florida Department of Corrections decisions that have prevented inmates from receiving the publication since 2009. The 11th U.S. Circuit Court of Appeals in May sided with the department, which argues that advertisements in Prison Legal News pose security risks.

Attorneys for the publication argued in the petition that “censorship” by the department violates First Amendment rights to free speech and a free press.

“Publishers, reporters, and advertisers have a constitutionally protected interest in communicating with prisoners, and prisoners have a right to receive those communications,” the 45-page petition said. “These protections are all the more important when the publication at issue is uniquely designed to inform prisoners of their legal rights, and a prison’s decision to silence that speech is all the more suspect when it is applied in a blanket manner to the entire incarcerated population based on bare assertions of security concerns without supporting evidence.”

But the Department of Corrections has pointed to ads for such things as three-way calling services and pen-pal solicitation as security threats. For example, the department is concerned that three-way calling services could hamper its ability to determine the identities and locations of people that inmates are calling and could undermine approved lists of people that inmates can call, according to the May appeals-court ruling.

The appeals court also pointed to Supreme Court decisions that it said require granting “substantial deference to the decisions of prison officials.”

“The Florida Department of Corrections has rules aimed at preventing fraud schemes and other criminal activity originating from behind bars, but inmates continually attempt to circumvent measures in place to enforce those rules,” the Atlanta-based appeals court said in its ruling. “The department, for its part, continually strives to limit sources of temptation and the means that inmates can use to commit crimes. One way it does that is by preventing inmates from receiving publications with prominent or prevalent advertisements for prohibited services, such as three-way calling and pen pal solicitation, that threaten other inmates and the public. In the department’s experience, those ads not only tempt inmates to violate the rules and commit crimes, but also enable them to do so.”

The Prison Legal News petition to the Supreme Court is the latest move in a dispute that has flared for about 15 years. The petition said Prison Legal News was distributed to Florida inmates from 1990 until 2003, when the Department of Corrections blocked it.

Prison Legal News filed a lawsuit, which led to the magazine again starting to be distributed in 2005. But the department reversed course and blocked the publication in 2009, resulting in more litigation. The U.S. Supreme Court receives thousands of petitions each year from across the country and agrees to hear only a fraction of the cases.

In arguing that the Supreme Court should take up the First Amendment case, however, attorneys for Prison Legal News said other states could “follow Florida’s lead” in blocking the magazine or other publications. Prison Legal News is allowed to be distributed to inmates in other states.

“Although the censorship of PLN (Prison Legal News) has been limited to Florida, the threat to First Amendment rights if the decision is left standing certainly does not end there,” the petition said. “The Eleventh Circuit’s decision provides both an invitation and a roadmap to silence PLN and any other publication that seeks to inform prisoners of their rights or to expose unlawful conduct by prison officials. There is little doubt that the ruling below will prompt other prison systems to follow Florida’s lead. Rather than let that trend blossom into further censorship, this (Supreme) Court should step in now to vindicate the First Amendment.”